Andor v. Secretary of Health and Human Services ( 2014 )

Case 1:13-vv-00858-UNJ Document 21 Filed 11/21/14 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-858V
Filed: November 21, 2014
* * * * * * * * * * * * * * * * UNPUBLISHED
DOUGLAS ANDOR, *
* Special Master Hamilton-Fieldman
Petitioner, *
* Petitioner’s Motion for Dismissal
v. * Decision; Insufficient Proof of
* Causation; Vaccine Act Entitlement;
SECRETARY OF HEALTH * Influenza (“Flu”) Vaccine; Hepatitis
AND HUMAN SERVICES, * A Vaccine; Tetanus-Diptheria-
* Pertussis (“TDaP”) Vaccine;
Respondent. * Ulcerative Colitis; Spondylitis;
* * * * * * * * * * * * * * * * Elevated Liver Enzymes.
Edward M. Kraus, Law Offices of Chicago-Kent, Chicago, IL, for Petitioner.
Darryl Wishard, United States Department of Justice, Washington, D.C., for Respondent.
DECISION 1
On October 31, 2013, Douglas Andor (“Petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 et seq. (2006).
Petitioner alleged that he suffered from ulcerative colitis, spondylitis, and elevated liver
enzymes, and that these injuries had been caused by the influenza (“flu”) vaccine he received on
October 31, 2010 and the Hepatitis A and Tetanus-Diptheria-Pertussis (“Tdap”) vaccines he
received on November 5, 2010. Petition at 1.
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Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by
Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in
substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule
18(b).
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The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
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Case 1:13-vv-00858-UNJ Document 21 Filed 11/21/14 Page 2 of 2
On November 21, 2014, Petitioner filed a Motion for a Decision Dismissing His Petition
(“Motion”). In his Motion, Petitioner indicates that “[a]n investigation of the facts and science
supporting this case has demonstrated to Petitioner that at this time he will be unable to prove
that he is entitled to compensation in the Vaccine Program.” Motion at 1. Petitioner further
states that he has been advised by his counsel that a decision dismissing his petition will result in
a judgment against him and will end all of his rights in the Vaccine Program. Id.
To receive compensation under the Vaccine Act, Petitioner must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to one of his vaccinations, or 2) that he suffered an injury that was actually caused by a vaccine.
See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not uncover
any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain a
medical expert’s opinion or any other persuasive evidence indicating that Petitioner’s injuries
were caused by a vaccination.
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims alone. Rather, the petition must be supported by either medical records or
by the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical
records are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioner, however, has offered no such opinion.
Therefore, the only alternative remains to DENY this petition. Thus, this case is
dismissed for insufficient proof. In the absence of a motion for review, the Clerk shall enter
judgment accordingly.
IT IS SO ORDERED.
s/ Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
Special Master
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